There
is no genuine dispute that the Lindsays submitted a complete
loan modification application by May 2014. Therefore,
Rushmore did not violate RESPA with regard to the
Lindsays' later loss mitigation applications, because it
was not required to comply with the loss mitigation
procedures for any of Plaintiffs' loss mitigation
applications submitted after the May, 2014 complete
application. Additionally, a statute of limitations bars
Plaintiffs' FDCPA claims. Also, the Lindsays cannot
succeed on their MCDCA claim because, in part, they challenge
the validity of the debt, which is not permissible under the
statute, and to the extent that they challenge the amount
rather than the validity, they cannot show that the amount in
excess of what they believed they owed was an unauthorized
type of charge, as a MCDCA claim requires. Finally, the
Lindsays cannot succeed on their RESPA claim regarding
Rushmore's allegedly delayed response to their inquiry
about their debt because Plaintiffs have not provided any
evidence that Rushmore's failure to provide a timely
response caused damages. Accordingly, I will grant
Rushmore's Motion as to all counts.

Standard
of Review

Summary
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id.

Count
I: Violations of RESPA

The
Lindsays stopped making mortgage payments in 2009 due to
“Mr. Lindsay's loss of income.”[3] Jt. Stmt. of
Facts ¶ 5. Although they claim that they brought their
loan current in April 2012, Am. Compl. ¶¶ 51-53,
58, they concede that they again stopped making payments in
2013 or 2014, Jt. Stmt. of Facts ¶ 10. Thus, in December
2013, they found themselves in default and unable to pay the
amount necessary to cure the default, which the parties agree
was at least $57, 000. Jt. Stmt. of Facts ¶¶ 7-9.
They submitted two “Home Retention Packages” in
late 2013 and early 2014, but Rushmore informed them that
both were incomplete. Id. ¶¶ 12, 14.

A few
months later, in April 2014, the Lindsays submitted another
incomplete loan modification application; Rushmore notified
them that it, too, was incomplete, and they submitted the
missing documents, such that, by May 29, 2014, they had
“submitted a complete and full package to Rushmore for
review.” Jt. Stmt. of Facts ¶¶ 16-19.
Rushmore denied the application on May 29, 2014. Id.
¶ 20. Despite agreeing to the Joint Statement of Facts
and that they had submitted what they believed to be a
complete loan application, the Lindsays now “dispute
that Rushmore ever deemed this application complete, ”
given that Rushmore never notified them that it was complete,
and because it was then denied (in Plaintiffs' view) for
failure to submit a sufficient down payment. Pls.'
Opp'n 2.

The
Lindsays submitted yet another loan modification application
to Rushmore later that year, and Rushmore acknowledged
receipt in a letter dated December 3, 2014. Jt. Stmt. of
Facts ¶ 21. Rushmore denied this loan modification
application on January 15, 2015, “because a complete
package was not received more than 37 days before the
Foreclosure Sale.” Id. ¶ 22. Finally, the
Lindsays “submitted a package for short sale review on
February 19, 2015, ” on which Rushmore failed to render
a decision within thirty days. Am. Compl. ¶¶ 97-98;
see Def.'s Mem. 7.

In
Count I, the Lindsays claim that Rushmore violated
RESPA's dual-tracking provision, 12 C.F.R. §
1024.41(g), by scheduling a foreclosure sale for February 5,
2017, even though Plaintiffs contend that they had submitted
a complete loan modification application on December 17,
2014. Am. Compl. ¶¶ 83, 86-88. The Lindsays assert
that, if the application were incomplete, “Rushmore
failed to send the notice of incomplete application within
five (5) days of receipt of Plaintiffs' application, as
required by 12 C.F. R. § 1024.41(b)(2)(i)(B).”
Id. ¶ 93. Plaintiffs also allege that
“Rushmore further violated RESPA Regulation X by
referring Plaintiff's loan to foreclosure after loss
mitigation had begun and the modification review was in
Process.” Id. ¶ 96. Additionally, they
allege that, pursuant to 12 C.F.R. § 1024.41(c),
“Rushmore was required to render a decision on the
short sale application within thirty (30) days, ” but
Rushmore failed to do so. Id. ¶¶ 97-98.

Rushmore
argues that it is entitled to summary judgment on Count I
because it is undisputed that the Lindsays submitted, and
Rushmore reviewed, a complete loan modification application
in May 2014, and therefore their later applications for loan
modification and short sale “are not subject to RESPA
under RESPA's duplicative requests provision.”
Def.'s Mem. 5- 6. Rushmore asserts, and the Lindsays do
not dispute, that Plaintiffs' loan modification
applications, as well as their February 19, 2015 short sale
request, constituted loss mitigation application for purposes
of 12 C.F.R. § 1024.41. See Id. at 6, 7.

The
Lindsays counter that, although they submitted a complete
application in May 2014, “it is unclear whether or not
Rushmore deemed the application complete, as it does not
appear that Rushmore ever sent Plaintiffs a notice that their
application was considered complete or incomplete, as
required under 12 C.F.R. § 1024.41(c)(3)(i), ” and
therefore their May 2014 application was not “a
‘single complete loss mitigation application, so as to
render the December 2014 application a ‘duplicative
request' not subject to RESPA's dual tracking
provision.” Pls.' Opp'n 6. Noting that
Rushmore's reason for its May 29, 2014 denial was that
“t[h]e amount of the good faith down payment is
insufficient to offer a loan modification, ” the
Lindsays insist that Rushmore had asked them for
“‘documents' indicating ‘proof of
funds for a good faith down payment, '” not
for the good faith down payment itself. Id. at 7
(emphasis added). In their view, this creates a genuine
dispute “as to whether Rushmore denied this application
for being incomplete due to Plaintiffs' failure to submit
a down payment.” Id.

The
parties agree about the relevant law, see Def.'s
Mem. 5-6, Pls.' Opp'n 6, which is straightforward:
“A servicer is only required to comply with the
requirements of this section [pertaining to loss mitigation
procedures] for a single complete loss mitigation
application for a borrower's mortgage loan
account.” 12 C.F.R. § 1024.41(i) (emphasis added).
The regulation defines “loss mitigation
application” as “an oral or written request for a
loss mitigation option that is accompanied by any information
required by a servicer for evaluation for a loss mitigation
option, ” 12 C.F.R. § 1024.31, and “complete
loss mitigation application” as “an application
in connection with which a servicer has received all the
information that the servicer requires from a borrower in
evaluating applications for the loss mitigation options
available to the borrower, ” 12 C.F.R. §
1024.41(b)(1). If a borrower submits an application that is
not complete and fails to complete it “for a
significant period of time, ” despite the
servicer's “exercise[] [of] reasonable diligence in
obtaining documents and information to complete [it], ”
and the servicer exercises its discretion to “evaluate
[the] incomplete loss mitigation application and offer [the]
borrower a loss mitigation option, ” that
“evaluation and offer . . . shall not constitute an
evaluation of a single complete loss mitigation application
for purposes of paragraph (i) of this section.” 12
C.F.R. § 1024.41(c)(2)(ii).[4] Thus, the issue is whether
the undisputed facts show that Rushmore received a
“complete loss mitigation application” in May
2014.

With
regard to Plaintiffs' assertion that Rushmore failed to
comply with 12 C.F.R. § 1024.41(c)(3)(i)'s
requirement that, “within 5 days . . . after receiving
a borrower's complete loss mitigation application, a
servicer shall provide the borrower a written notice that
sets forth . . . [t]hat the loss mitigation application is
complete, ” I note that § 1024.41(c)(3)(i) does
not go into effect until October 19, 2017. Therefore, the
regulation does not yet require notice that a loss mitigation
application was complete, and Plaintiffs' contention that
the five day notice of receipt of a complete loss mitigation
application applied to their May 2014 application is without
merit. See 12 C.F.R. § 1024.41.

As for
whether the May application was a complete loss mitigation
application, the undisputed evidence shows that, after
Plaintiffs submitted their April loan modification
application, Rushmore requested additional documents
including “[p]roof of funds for good faith down
payment.” Apr. 8, 2014 Ltr. to Pls., Jt. Rec. 195.
Rushmore once again requested additional documents on April
25, 2014; it appears that by that time, Rushmore had received
“[p]roof of funds for the down payment, ” because
that category was not checked on the list of outstanding
items. Apr. 25, 2014 Ltr. to Pls., Jt. Rec. 200-01. On May
29, 2014, Rushmore informed the Lindsays that their
“request was carefully considered, ” but Rushmore
could not “offer [Plaintiffs] a loan modification at
th[at] time” because, even though Rushmore had received
“proof of the good faith down payment[, ] . . . [t]he
amount of good faith down payment [was] insufficient to offer
a loan modification.” May 29, 2014 Ltr. to Pls., Jt.
Rec. 205-06.

Contrary
to the Lindsays' assertions, the undisputed evidence
clearly shows that they submitted a complete loss mitigation
application, including proof that they could make a good
faith down payment, and Rushmore regarded their submission as
complete when it denied the application. Despite the arguably
misleading wording in the denial letter that referred to an
“amount of good faith down payment”
rather than the amount that Plaintiffs could provide
as a good faith down payment, it is illogical to interpret
Rushmore's denial to state that Plaintiffs were supposed
to, but failed to, provide a good faith down payment, when
Rushmore never requested an actual payment.[5] Rather, Rushmore
received all of the information it requested and denied the
application because Plaintiffs failed in their loan
modification application to show that they could provide a
sufficient good faith down payment if the application were
approved. Thus, there is no genuine dispute that the
Lindsays' May 2014 loan modification application was a
complete loss mitigation application under 12 C.F.R. §
1024.41(b)(1). Therefore, Rushmore was not required to comply
with the loss mitigation procedures of 12 C.F.R. §
1024.41 for any later loss mitigation applications that the
Lindsays submitted, such as their later loan modification
applications and their short sale request. See 12
C.F.R. § 1024.41(i). Consequently, Rushmore did not
violate RESPA with regard to the Lindsays' later loss
mitigation applications, and summary judgment in
Rushmore's favor on Plaintiffs' RESPA claims in Count
I is appropriate. See id.; Fed.R.Civ.P. 56(a).

Count
II: Liability under FDCPA

On
December 11, 2013, Rushmore issued a Notice of Intent to
Foreclose (sometimes “Notice”), which stated that
the amount required to cure the default was $100, 665.57, and
that the creditor was RBS Financial Products, Inc.
(“RBS”). Notice, Jt. Rec. 54; see Dec.
11, 2013 Ltr. to Pls., Jt. Rec. 65 (Notice cover letter
stating that the “total amount due” was $102,
807.36, but it stated that the total was “less [an]
unapplied balance [of] $2, 141.79, ” for an actual
total of $100, 665.57). The Lindsays claim that the maximum
amount necessary to cure their default at the time of the
Notice should have been $57, 242.82 and the actual creditor
was Random Properties Acquisition Corp. III (“Random
Properties”). Am. Compl. ¶¶ 56-58, 66-68.
Rushmore then filed an Order to Docket (sometimes
“Order”) on October 7, 2014. Jt. Rec. 1-90. The
Lindsays claim that the Order stated that the debt was $115,
081.68, [6] when, according to the Lindsays, it should
have been $87, 370.62. Am. Compl. ¶¶ 60-61.

The
Lindsays claim that Rushmore violated the FDCPA by
“[f]alsely representing the amount of the debt”
in the Notice of Intent to Foreclose and the Order to Docket,
in violation of 15 U.S.C. §1692e(2)(A). Am. Compl.
¶ 105(a), (e). They claim that Rushmore also violated
the FDCPA by “[m]isleading [Lindsay Sterling] to
believe that the amount he paid to Rushmore and the previous
loan servicer was incorrect, in violation of 15 U.S.C.
§1692e(A) and §1692e(10)”; “[f]alsely
representing the creditor in the Notice of Intent to
Foreclose, in violation of 15 U.S.C. §1692e(A),
§1692e(10), and/or §1692e(14)”; and
“[f]ailing to appropriately identify the name of the
creditor to whom the debt is owed, in violation of 15 U.S.C.
§1692g(a)(2) [in the Notice].” Id. ¶
105(b)-(d); see Id. ¶¶ 66-68.

Rushmore
argues that the one-year statute of limitations for FDCPA
claims bars all of these claims. Def.'s Mem. 8-9. The
Lindsays do not dispute Rushmore's assertion that
“the FDCPA violations in the December 11, 2013 N[otice]
fall outside of the one year limitations period, as
Plaintiffs filed their law suit with this Court on April 10,
2015, ” ...

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